BOSTON, Jan. 30, 2014—The Massachusetts Appeals Court last week reversed a lower court judge’s decision suppressing a loaded handgun from evidence, meaning a jury will see the high-capacity firearm and ammunition seized from a previously-convicted gun defendant during a car stop in Mattapan, Suffolk County District Attorney Daniel F. Conley said.

The Jan. 21 decision in the case against YVES FONTAINE (D.O.B. 6/10/74) comes after Suffolk prosecutors appealed a Boston Municipal Court judge’s finding that a 2010 search warrant obtained by Boston Police for Fontaine’s car was not supported by probable cause.

“This was good police work by experienced officers who took every appropriate step,” Conley said. “We appealed the judge’s decision for two reasons: first, because the officers’ instincts and ethics were right on the mark, and second, because removing a repeat gun offender from the street through prosecution is every bit as important as removing the gun itself.”

Fontaine is charged in the Suffolk County Gun Court with firearms offenses stemming from a traffic stop on the night of Dec. 9, 2010. As Boston Police officers approached his vehicle near Blue Hill Avenue and Wellington Hill Street, they saw him lean quickly toward the passenger’s side dashboard and return to an upright position. When asked what he had been doing, Fontaine allegedly denied making any such movement.

Even before they got to the car, officers noticed the overwhelming smell of unburnt marijuana. As they spoke to Fontaine and his passenger, they saw a plastic bag containing what appeared to be marijuana, although in a significantly smaller quantity than the odor suggested.

Based on their observations, the officers ordered Fontaine and his passenger from the car. Checking the front passenger compartment, they found $2300 in three bundles of cash rubber-banded together and an abundance of loose and excess wiring in the area of the dashboard. They did not recover any items or paraphernalia associated with personal drug use.

Additional Boston officers and a State trooper now responded to assist the original pair of officers. Among the second wave of police was a Boston Police detective who recognized the passenger as having been arrested repeatedly for drug and firearms offenses. Running both men’s records, he learned that Fontaine had also been previously convicted of unlawful possession of a firearm, assault and battery, and drug offenses. Another detective familiar with hidden storage compartments recognized the wiring as consistent with a drug cache.

In light of the overpowering odor of marijuana, the presence of bundled cash but absence of rolling papers, pipes, or other personal-use paraphernalia, and the wires suggesting a drug hide, police seized the car and obtained a search warrant from Dorchester Municipal Court. They executed that search warrant the next day and recovered a handgun loaded with 15 rounds of ammunition in a secret compartment within the vehicle. They did not recover any additional marijuana. A complaint issued and Fontaine was subsequently arraigned on the gun offenses.

After a hearing, however, a judge granted Fontaine’s motion to suppress the firearms evidence on the grounds that “there was nothing in the [officers’] affidavit to support probable cause to believe that a firearm might be located in the car and that firearm was related to crime investigated – possession of Class D with intent to distribute.”

Assistant District Attorney Cailin Campbell appealed that decision and argued that the affidavit established probable cause to believe that there was a cache inside the vehicle, that it contained illegal contraband, and that police undertaking a good-faith, properly-supported search for drugs would inevitably have found the firearm and ammunition, making it admissible as evidence.

The Appeals Court, in a seven-page decision authored by Justice Peter Agnes, agreed.

“[W]hen an experienced police officer detects an ‘overwhelming’ odor of unburnt marijuana that is ‘pervasive’ throughout the entire vehicle, and the officer reasonably believes it is inconsistent with the small quantity of marijuana that is visible in the vehicle, the officer has specific and articulable facts that support a reasonable suspicion that a crime is being committed, namely possession of more than one ounce of marijuana,” Agnes wrote. “Here, the combination of the ‘overwhelming’ odor of unburnt marijuana and the additional facts known by the officer, namely, the absence of any implements for smoking marijuana, the three sizable bundles of United States currency, the excess wiring under the dashboard and throughout the passenger compartment consistent with hides, the manner in which the marijuana in the small bag in the console was packaged, the inconsistency between the strength of the odor and the amount in the small bag, and the fact that the two occupants had prior criminal convictions of drug offenses, was sufficient to establish probable cause to believe a criminal quantity of marijuana was hidden in the vehicle.”

Agnes also cited the principle of “inevitable discovery.” As described in a 1997 Supreme Judicial Court decision, “if the Commonwealth can demonstrate … that discovery of the evidence by lawful means was certain as a practical matter, the evidence may be admissible as long as the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression.”

“If the police had not included [firearms and ammunition] in their application for a search warrant, it was ‘certain as a practical matter’ that such evidence would have been discovered during the properly authorized search for marijuana,” Agnes wrote. “In these circumstances, ‘… there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings.’”

Conley hailed the Appeals Court’s decision.

“It comes down to this,” he said. “The officers executed a lawful traffic stop and observed the furtive movements by the driver. That individual, like his passenger, had convictions for gun and drug offenses. A limited and good-faith examination of the front seat area turned up evidence of illegal drug distribution. Rather than exceed their authority and risk adverse action in court, they properly applied for a search warrant that led to an illegal firearm with a high-capacity magazine. We should support police officers who approach their jobs carefully and ethically, and we should be aggressive in prosecuting the individuals who bring violence and chaos to our community. That was our appellate strategy here, and that’s why this is a solid victory for the people of Mattapan, Boston, and Suffolk County.”

While the appeal on his gun case was pending, Fontaine was arrested again with 10 plastic baggies of crack cocaine, for which he was charged with possession with intent to distribute a Class B substance. His next date in court is April 4.

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All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.